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Wednesday, February 4, 2009

The California Supreme Court gave notice yesterday that it will hear oral arguments on Prop 8, Thursday, March 5, 2009 and must issue its decision within 90 days.

The court agreed to hear the legal challenges to Proposition 8 last November and due to the nature of the case, set up an expedited schedule. Briefing in the case was completed on January 21, 2009.

On January 15, 2009, 43 friend-of-the-court briefs, from bar associations, religious groups, and legal scholars, urging the Court to invalidate Prop 8, were filed, arguing that the proposition drastically alters the equal protection guarantee in California’s Constitution and that the rights of a minority cannot be eliminated by a simple majority vote.

In May 2008 the California supreme court held that laws that treat people differently based on their sexual orientation violate the equal-protection clause of the California constitution and that same-sex couples have the same fundamental right to marry as other Californians. Prop. 8 eliminated this fundamental right only for same-sex couples. No other initiative has ever successfully changed the California constitution to take away a right only from a targeted minority group.

California attorney general Jerry Brown is also asking the court to invalidate Prop. 8 on the grounds that certain fundamental rights, including the right to marry, are inalienable and cannot be put up for a vote.

Proposition 8 passed by a bare majority of 52 percent on November 4. The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this challenge on November 5. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney. Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP. The case is Strauss et al. v. Horton et al. (#S168047).

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"All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

- Thomas Jefferson, the third President of the United States, the principal author of the Declaration of Independence, and one of the most influential Founding Fathers.